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Sri. R Vijith vs State By Channammanakere on 20 February, 2018

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IN THE HIGH COURT OF KARNATAKA, BENGALURU

DATED THIS THE 20TH DAY OF FEBRUARY, 2018

BEFORE

THE HON’BLE MR.JUSTICE K. N. PHANEENDRA

CRL.P. NO.8629/2017

BETWEEN

SRI. R. VIJITH,
S/O RAMACHANDRAPPA,
AGED ABOUT 32 YEARS,
R/AT #17, 2ND CROSS,
B.S.K. 3RD STAGE,
BANNI MANTAPA ROAD,
S.V. LAYOUT,
BENGALURU 560 085 … PETITIONER

(BY SRI. VEERANNA G. TIGADI, ADV. FOR
SRI. C. G. SUNDAR, ADV.)

AND

1. STATE BY CHANNAMMANAKERE
ACHUKATTU POLICE,
REP. BY PUBLIC PROSECUTOR,
HIGH COURT COMPLEX,
BENGALURU 560 001.

2. K.VARASHASHREE,
D/O KARUPAIAH,
AGED ABOUT 26 YEARS,
NO.45TH 5TH CROSS,
SRIRAMANAGARA,
ITTAMADU, B.S.K., 3RD STAGE,
BENGALURU 560 085 … RESPONDENTS

(BY SRI. S. RACHAIAH, HCGP FOR R1.
R2 PRESENT IN PERSON)
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THIS CRL.P IS FILED UNDER SECTION 482 CR.P.C
PRAYING TO QUASH THE PROCEEDINGS PENDING ON
THE FILE OF 53RD ADDITIONAL CITY CIVIL AND
SESSION JUDGE AT BENGALURU IN S.C.NO.576/2015
AND SET THE PETITIONER AT LIBERT.

THIS CRL.P COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:

ORDER

The second respondent personally present before

the court along with her mother. Learned High Court

Government Pleader takes notice for respondent No.1 –

State.

2. Heard the learned counsel for the petitioner

and the learned High Court Government Pleader for the

first respondent State as well as the second respondent,

who is personally present before the court. Perused the

records.

3. The learned counsel for the petitioner

strenuously contends that no opportunity has been

given to the petitioner to argue the matter on the

discharge application filed by him. Secondly, it is

contended that the learned trial Judge has not even
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looked into the materials on record and also the

grounds urged in the application while disposing of the

petition u/s.227 of Cr.P.C..

4. Per contra, the second respondent who is

present before the court submitted that earlier, the

accused counsel has argued the matter before the

previous judge and thereafter, accused remained

absent before the court and even before disposal of the

discharge application, arguments were heard by the

learned Judge. Therefore, there is no legal impediment

in the order impugned in the petition and the same

deserves to be dismissed.

5. I have carefully perused the ordersheet of

the trial Court. It is quiet relevant to note here that on

25.9.2017, just prior to one day of the passing of the

order on the application u/s.227 of Cr.P.C., the learned

Judge has noted that the

“Accused absent. E.P. filed. Accused
counsel prays time to hear on discharge
application calling, accused absent alleged
discharge even after sufficient time granted
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finally for arguments on discharge application
call on 26.9.2017.”

6. On 26.9.2017, there is no material or the

observation by the trial Judge that whether the accused

and counsel were present, any arguments were

submitted by the counsel or any written arguments

were submitted whether the trial Court has gone

through the said written arguments and passed the

order impugned under the petition.

7. The order discloses that the trial Court has

disposed of the application even without expressing any

materials on record except stating that the prosecutrix

is an adult aged 26 years and there is a DNA report

shows that the accused is the biological father of the

child of the prosecutrix. Except these two sentences,

nothing has been looked into by the trial Court while

passing the order on the discharge application. When

an application is filed for discharge, it is incumbent

upon the court to follow the procedure contemplated

u/s.227 of Cr.P.C..

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8. It is seen from the said provision which clearly

enumerates that –

“If, upon consideration of the record of the
case and the documents submitted therewith,
and after hearing the submissions of the
accused and the prosecution in this behalf, the
Judge considers that there is no sufficient
ground for proceeding against the accused, he
shall discharge the accused and record his
reasons for so doing.”

Therefore, it is incumbent upon the court to consider

the entire records of the case and the documents

produced by the prosecution along with the charge

sheet and after hearing the submissions of the accused

and the prosecution, then only the court has to pass

appropriate order considering whether there are

sufficient grounds to proceed against the accused if so,

the court can frame charges for specific offences and

proceed with the case, otherwise the court has to

discharge the accused.

9. In this context, it is worth to mention here a

decision of the Hon’ble Apex Court reported in AIR
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2010 SC 663, between P.Vijayan and State of

Kerala wherein the Hon’ble Apex Court has observed

thus:

“The Judge should not be a mere Post
Office to frame the charges, but has to
exercise his judicial mind to the facts of the
case in order to determine whether a case
for trial has been made out by the
prosecution. The sufficiency of ground
would take within its fold, the nature of the
evidence recorded by the Police or the
documents produced before the court which
ex-facie disclosed that there was suspicious
circumstances against the accused”

Therefore, if the above said principles are applied to this

particular case, neither the factual aspects of the case

have been considered by the trial court nor the entire

materials placed before the court by the prosecution

and thereafter, recorded its opinion, whether there are

sufficient materials to proceed against the accused or

not. Therefore, the order is very cryptic in nature and

bereft of reasons and therefore, the same is liable to be

set aside remitting the application u/s.227 of Cr.P.C. to
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the trial Court with a direction for re-consideration after

looking into the materials on record and to pass

appropriate order in accordance with law on the said

application in the light of the observations made in the

body of this order.

Accordingly, the Petition is disposed of.

The trial Court is hereby directed to dispose of the

said application filed u/s.227of Cr.P.C. as expeditiously

as possible or within one month from the date of receipt

of a copy of this order.

In view of disposal of the petition, pending

consideration of IA No.1/2017 does not survive for

consideration and the same stands dismissed.

Sd/-

JUDGE

PL*

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